Thursday, January 28, 2016

Additional Notes: In December, the Department of Labor finalized the regulations discussed in this blog (81 Fed. Reg. 87130, December 2, 2016). Several commenters to the proposal issued in January had recommended that miniature horses should be included in the service-animal definition, or given the kind of provisional status they have received from the Department of Justice. In the preamble to the final rules as just issued, the Department states:

An advocacy organization recommended that the definition of “service animal” be expanded to include emotional support animals to be consistent with language in the Pennsylvania Human Relations Act and the Federal Fair Housing Act. Another advocacy organization suggested that CRC eliminate or explain the differences between CRC’s and DOJ’s language regarding emotional support and the exclusion of miniature horses as service animals. Similarly, a state-based organization serving individuals with developmental disabilities recommended that the definition of “service animal” be revised to include miniature horses. The commenter noted that, even though current ADA requirements recognize dogs only as service animals, it also permits the use of a miniature horse as a service animal in certain circumstances.

The references in this paragraph are to the State of Michigan's Developmental Disabilities Council and Psychiatric Service Dog Partners. To such suggestions, the Department now says:

In the interest of uniformity, our definition of a service animal under section 38.4(fff) is limited to dogs, consistent with the Department of Justice's 2010 ADA Title regulations. While another section of the DOJ Title II regulations sets out standards for the reasonable modificaiton of policies, and procedures to permit miniature horses to be utilized in certain circumstances and under specific criteria, this is different from including miniature horses in the definition of "service animal."

Uniformity, however, would be to include such a separate provision. The Department also rejected the idea that emotional support animals should be included in the service-animal definition. This, however, could not be said to be a surprise because the Department had demonstrated no interest in broadening the DOJ definition.

As I noted in the original blog below, the most important question was whether these rules might become a model for more significant enforcement areas delegated to the Department of Labor. Though that is still possible, the demonstrated aversion of the incoming administration to regulations in general, as well as the visible contempt of the president-elect towards those with disabilities, make it unlikely that these provisions will have broader significance for some years.

The original blog follows.

The Department of Labor has shown little inclination to issue regulations regarding service animals. In the entire of Title 29 of the Code of Federal Regulations there is only one reference to a service animal and one to a guide dog, and both are in explanatory texts rather than in the regulations themselves. Thus, in describing mitigating measures that should not be taken into account in determining whether an impairment substantially limits a major life activity, the explanatory language to 29 CFR 1630.2(j)(1)(vi), gives a service animal as an example of a mitigating measure not to be taken into account.In other words, blindness substantially limits a major life activity even if a guide dog allows the individual with a disability to function more close to normal, and deafness severely limits a major life activity even if a hearing dog allows the dog’s owner to respond to sounds in his or her environment.Eyeglasses and contact lenses are an exception to this logic, so that if a person with vision impairment can function normally with glasses, he or she may not be categorized as having an impairment that substantially limits a major life activity.

The reference to a guide dog in Title 29 comes only a few pages away and concerns 29 CFR 1630.2(o), a section that gives a number of definitions, including one for “reasonable accommodation.”The explanatory language states that it “would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee.” Thus, whether an employee should be able to have a service animal in a workplace is a matter that requires a reasonable accommodation analysis.

Workforce Innovation and Opportunity Act

This dearth of regulatory attention to service animals by the Department of Labor has changed dramatically with the issuance of proposed regulations that would implement the Workforce Innovation and Opportunity Act (PL 113-128, abbreviated "WIOA"), signed into law by President Obama on July 22, 2014.This Act was designed to provide federal funds for workers to learn new skills to enable them to compete for jobs in growth sectors of the 21st century economy.The Act prohibits agencies receiving federal funds for this purpose from discriminating on the basis of race, color, religion, sex, national origin, age, disability, or political affiliation or belief. Section 3(25) of the Act defines “an individual with a disability” as “an individual with a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).”The proposed rules, published in the Federal Register on January 26, are open for comment until March 28, 2016.(Department of Labor, Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, RIN 1291-AA36.81 Fed. Reg. 4494, January 26, 2016)

The anti-discrimination provisions apply to recipients of federal funds provided under the Act.A recipient is defined under proposed 29 CFR 38.4(zz) as an entity that receives assistance either directly or indirectly, such as a state or any of the following entities:

(1) State-level agencies that administer, or are financed in whole or in part with, WIOA Title I funds;

(2) State Workforce Agencies;

(3) State and local Workforce Investment Boards;

(4) LWIA [Local Workplace Investment Area] grant recipients;

(5) One-Stop operators;

(6) Service providers, including eligible training providers;

(7) On-the-Job Training (OJT) employers;

(8) Job Corps contractors and center operators;

(9) Job Corps national training contractors;

(10) Outreach and admissions agencies, including Job Corps contractors that perform these functions;

Thus, programs and activities that receive federal financial assistance under the Act cannot discriminate against participants with disabilities who use service animals. As to why DOL decided to deal with service animals in these proposed regulations, DOL says that the “Department’s discussions with recipients’ EO [Equal Opportunity] Officers demonstrate that there has been some confusion on the part of recipients as to what constitutes a service animal and what constitutes a pet.”

Service Animals under New DOL Regulations

The regulations now proposed for 29 CFR Part 38 would replace final regulations published in July 2015 that were in question and answer form but which brought complaints from recipient agencies that found the format confusing and difficult to navigate. Those regulations did not mention service animals.

Given that many covered entities are state-level agencies, it is not surprising that DOL has now chosen to rely on the DOJ service-animal regulations that apply to state and local governments.There are differences between the service-animal rules of the two Departments, however, the major ones being (1) the inclusion of a provision on the presence of service animals in food preparation areas in the DOL rules, and (2) the absence of any mention by DOL of miniature horses as a category that, while not formally labeled service animals by DOJ, are at least provisionally covered by similar access provisions.Those differences are highlighted in the table below, with the proposed rules of the Department of Labor on the left and the final rules of the Department of Justice on the right.

Department of Labor

Department of Justice

29 CFR 38.4 Definitions.

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(fff) Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship, without more, do not constitute work or tasks for the purposes of this definition.

28 CFR 35.104 Definitions.

***

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

29 CFR 38.16 Service animals.

(a) General. Generally, a recipient shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(b) Exceptions. A recipient may ask an individual with a disability to remove a service animal from the premises if—

(1) The animal is out of control and the animal’s handler does not take effective action to control it; or

(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a recipient properly excludes a service animal under paragraph (b) of this section, the recipient must give the individual with a disability the opportunity to participate in the WIOA Title I-financially assisted service, program, or activity without having the service animal on the premises.

(d) Animal under handler’s control. A service animal must be under the control of its handler. A service animal must have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A recipient is not responsible for the care or supervision of a service animal.

(f) Inquiries. A recipient must not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A recipient may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A recipient must not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a recipient may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).

(g) Access to areas of a recipient’s facilities. (1) In general. Individuals with disabilities must be permitted to be accompanied by their service animals in all areas of a recipient’s facilities where members of the public, participants in services, programs or activities, beneficiaries, registrants, applicants, eligible applicants/registrants, applicants for employment and employees, or invitees, as relevant, are allowed to go.

(2) Use of service animals in food preparation areas. An employee, applicant or beneficiary with a disability who needs to use a service animal in a food preparation area must be allowed to do so unless the employer recipient, after an individualized assessment, can demonstrate, that the presence of the service animal presents a direct threat to health or safety that cannot be eliminated or reduced by a reasonable accommodation to the employee, applicant or beneficiary.

(h) Surcharges. A recipient must not ask or require an individual with a disability to pay a surcharge because of his or her service animal, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a recipient normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

28 CFR 35.136 Modifications in policies, practices or procedures.

(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—

(1) The animal is out of control and the animal's handler does not take effective action to control it; or

(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a public entity properly excludes a service animal under §35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

(d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.

(f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).

(g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.

(h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

(i) Miniature horses. (1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—

(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(ii) Whether the handler has sufficient control of the miniature horse;

(iii) Whether the miniature horse is housebroken; and

(iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(3) Other requirements. Paragraphs 35.136(c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.

As to why DOL added a provision regarding service animals in food preparation areas, it is perhaps worth noting that the EEOC has a webpage, “How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employees.”This webpage does not define “service animal” but does refer to an ADA website for further information on service animals, as well as cross-referencing to service-animal provisions in the Food Code, a document discussed here in a prior blog.Placing the burden of establishing a reason to exclude a service animal from a food preparation area on the recipient of funds, rather than on the individual using the animal, is appropriate and, if DOL is considering expanding its service-animal provisions to other areas where it has regulatory authority, it is to be hoped that this approach will remain consistent.

The lack of any mention of miniature horses, either in the text of the regulations or in the preamble, is more puzzling. Whether this is due to reasons similar to those given by the Veterans Administration in declining to allow miniature horses in VA facilities, as discussed here when those rules were finalized last August, or is rather explained by a total lack of agency experience with miniature horses, is unclear. It is to be hoped that those advocating the use of miniature horses as service animals will sooner rather than later find an effective lobbying voice and begin commenting on regulatory ignorance of their existence.

Conclusion

It might be hoped that DOL’s willingness to follow DOJ’s lead on service animal issues will soon extend beyond just the recipients of federal funds under a single program.Two footnotes in the regulatory release give pause to such speculation, however.Both footnotes state that the “EEOC has not addressed whether or not this definition [i.e., the definition of “service animal” in proposed 29 CFR 38.4 in the table above] would apply to employers and employment agencies covered under Title I of the ADA or Section 501 of the Rehabilitation Act.”While these footnotes acknowledge a deficit in regulatory coverage, they may not imply that this deficit will be addressed any time soon but rather may be intended to emphasize that no extension of the current proposal regarding service animals to other areas under DOL's purview is to be anticipated.

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John Ensminger is an attorney and member of the bars of the State of New York and the United States Supreme Court. He is the co-editor of Canine Olfaction Science and Law: Advances in Forensic Science, Medicine, Conservation, and Environmental Remediation. His other books include Police and Military Dogs: Criminal Detection, Forensic Evidence and Judicial Admissibility and Service and Therapy Dogs in American Society. His articles on legal and scientific issues have appeared in Applied Animal Behaviour Science, Forensic Science International, Journal of Forensic Sciences, Journal of Animal and Natural Resource Law, Journal of Veterinary Behavior, Journal of Animal Law, ABA General Practice, Tax Notes, and the Journal of Forensic Psychology Practice. John is a Contributing Editor of the Animal Legal & Historical Center of the Michigan State University College of Law.